RFI - Appendix 2 - Caravan Parks v Rockhampton Regional Council Anor 2018 QPEC 52 · MCU19/0117

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                “578    Carrying out assessable development without permit

                        (1)    A person must not carry out assessable development unless
                               there is an effective development permit for the development.”

[103]   Section 582(a) of SPA was relevant to the ongoing use of the land for the purposes of
        RV accommodation. This provision states:

                “582    Offences about the use of premises

                        Subject to subdivision 2, a person must not use premises –

                        (a)    if the use is not a lawful use; or…”

[104]   Section 9 of SPA defines lawful use as follows:

                “9      Meaning of lawful use

                        A use of premises is a lawful use of the premises if –

                        (a)    the use is a natural and ordinary consequence of making a
                               material change of use of the premises; and

                        (b)    the making of the material change of use was in compliance
                               with this Act.”

[105]   For the purposes of s.9 of SPA, the RV accommodation use was a natural and ordinary
        consequence of making a material change of use of the land. The material change of
        use involved the start of a new use, namely an undefined use. It was assessable
        development for which an effective development permit was required. No such
        permit was obtained, and the material change of use was not in compliance with SPA.
        As a consequence of these matters, the continuation of the RV accommodation use
        from the date of commencement, up to and including 2 July 2017, contravened s.582
        of SPA.

[106]   An offence against ss.578 and 582 is, by definition, a development offence under
        SPA.

[107]   The history of the RV accommodation use, and an examination of relevant legislative
        and planning controls is not complete at this point. The 2005 Planning Scheme was
        repealed, and the 2015 Planning Scheme took effect on 24 August 2015. At this time,
        SPA was still in force and, for the reasons given above, the RV accommodation use
        was not a lawful use for the purposes of s.9 of that Act.

[108]   Before turning to deal with relevant provisions of the 2015 Planning Scheme, it is
        relevant to pause to observe section 682 of SPA which states:

                “682    Lawful use of premises protected

                        (1)    Subsection (2) applies if -

                               (a)     immediately before the commencement of a planning
                                       instrument or an amendment of a planning
                                       instrument, the use of premises was a lawful use of the
                                       premises; or